Molloy & Molloy
[2016] FamCAFC 264
•14 December 2016
FAMILY COURT OF AUSTRALIA
| MOLLOY & MOLLOY | [2016] FamCAFC 264 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the respondent opposes reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where the applicant provided an adequate explanation for the delay – Appeal reinstated. FAMILY LAW – COSTS – Where the respondent seeks that the applicant or the applicant’s solicitors pay his costs of the application for reinstatement – Where the circumstances giving rise to the application for reinstatement are the sole responsibility of the solicitors acting on behalf of the applicant – Where there are justifying circumstances for an order for costs to be paid by the applicant’s solicitors – Applicant’s solicitors to pay respondent’s costs fixed at $2,500. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth): r 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Molloy |
| RESPONDENT: | Mr Molloy |
| FILE NUMBER: | SYC | 3838 | of | 2014 |
| APPEAL NUMBER: | EAA | 180 | of | 2016 |
| DATE DELIVERED: | 14 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 14 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 2400 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Marsdens Law Group |
| COUNSEL FOR THE RESPONDENT: | Mr Watkins |
| SOLICITOR FOR THE RESPONDENT: | GA Lawyers |
Orders
That the Notice of Appeal filed on 18 October 2016 be reinstated.
That the time to file a draft appeal index be extended to the close of business on 21 December 2016.
That Marsdens Law Group pay the respondent’s costs of the application in the amount of two thousand five hundred dollars ($2,500) within 28 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Molloy & Molloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 180 of 2016
File Number: SYC 3838 of 2014
| Ms Molloy |
Applicant
And
| Mr Molloy |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed on 18 November 2016 Ms Molloy (“the applicant”), seeks to reinstate her Notice of Appeal filed on 18 October 2016. The appeal was deemed abandoned because the applicant failed to file and serve the draft appeal index by 15 November 2016, being the date prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) (“the rules”). As a consequence of her failure to do so, by virtue of r 22.13(3) the appeal was deemed abandoned. Hence the application for reinstatement.
The husband, Mr Molloy (“the respondent”) is the respondent to the appeal and the application for reinstatement. It is his position that the application should be dismissed.
The orders under appeal arise from property settlement proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”). At first instance the primary judge determined that the net property pool was valued at $929,960 and found that a 60/40 per cent division in the respondent’s favour was appropriate. To effect this division the primary judge determined that the applicant would retain her superannuation and the respondent would need to pay the applicant $372,320. The orders under appeal provide that the respondent’s payment to the applicant could be effected either by the respondent transferring the applicant $372,320 within 90 days (Order 1) or in the event of default, the former matrimonial home be sold and after payment of agent’s fees and mortgages, transferring to the applicant 42.5 per cent of the net sale proceeds plus interest on the unpaid $372,320. The respondent would retain the balance (Order 5).
Applicable law
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). At page 480 the High Court said:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.
This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In determining whether strict compliance with the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave.
The decision of the High Court in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516, in particular, Gummow and Hayne JJ at [33] is also relevant:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Delay
Pursuant to r 22.13 of the rules, as I have said, the applicant was required to file her draft appeal index within 28 days of filing her Notice of Appeal. The rules provide that if an appellant fails to file the draft appeal index, the appeal is taken to be abandoned. Accordingly, the applicant had until 15 November 2016 to file her draft appeal index. This was confirmed through correspondence sent to the applicant’s solicitor from the appeals registry on 20 October 2016. The applicant did not do so and by operation of the rules her appeal is abandoned.
The first question to be determined is whether the applicant has provided an adequate explanation for her failure to comply with the timeframe for filing the draft appeal index. The explanation initially given is contained in the affidavit of her solicitor filed on 18 November 2016. In that affidavit, the applicant’s solicitor deposed that due to an “administrative error” he was unaware of the letter sent by the appeals registry on 20 October 2016 and its contents, and only became aware that the deadline for filing the draft index had passed during a phone call with the respondent’s solicitor on 17 November 2016. Of course, it is not the Court’s job to tell solicitors to read the rules. The expectation is that those appearing take the time to educate themselves about relevant rules and practice obligations. But there you have it. The solicitor apparently did not know of the relevant rule and the gist of his affidavit is he did not have access to the letter because of an administrative error.
Troublingly, an affidavit filed by the respondent’s solicitor puts the material contained in the solicitor’s affidavit, in particular paragraph 10, in serious doubt. This is because the solicitor for the respondent attaches to his affidavit correspondence apparently under the hand of the applicant’s solicitor to which is attached the very letter sent by the appeals registrar and referred to in paragraph 10 of the solicitor’s affidavit. This tends to suggest that the explanation provided in paragraph 10 of the applicant’s solicitor’s affidavit should not be accepted.
However, this morning, Mr Reeve who appeared accompanied by the applicant’s solicitor made it clear that the failure to file the draft appeal index is solely the responsibility of the firm and it was a mistake which it is submitted should not be visited on the applicant. I also note that following the telephone call with the respondent’s solicitor on 17 November 2016 the applicant’s solicitor took steps to file a draft appeal index the following day but for obvious reasons was unsuccessful. The same day the applicant’s solicitor contacted the respondent’s solicitor and sought their consent to an extension of time to file the draft index, however that request was rejected. Accordingly, the applicant’s solicitor filed the application for reinstatement the same day.
I accept the submission made by Mr Reeve that the delay of some three days is of little consequence and having regard to Mr Reeve’s explanation but not the applicant’s solicitor’s affidavit, in particular paragraph 10, the delay is adequately explained.
Merits of the appeal
Counsel for the respondent sought to address the merits of the appeal arguing that the Court would not reinstate because the appeal is against the exercise of discretion and the grounds as framed appear unlikely to attract appellate intervention. It is not necessary to consider the merits of the appeal in any detail. As Brennan CJ and McHugh J said at [7] of Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516:
It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, "must be investigated and decided in the manner appointed". If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
(Footnotes omitted)
All that needs be observed at this point is that by her grounds of appeal the applicant raises a number of challenges to the primary judge’s exercise of discretion. On their face, it cannot comfortably be said that the appeal is devoid of merit even if it might, as counsel for the respondent says, be weak.
Prejudice
The solicitor for the applicant contends that the applicant would be prejudiced if the appeal were not reinstated. I agree. As is made clear by the applicant’s solicitor at [16] of his affidavit, “The Applicant [wife] directed me to file an appeal and through no fault of her own, the directions of the Registry…”, I pause to also add in accordance with the rules, “in relation to the conduct of the appeal have not been complied with.”
A submission was made on behalf of the respondent that he would be prejudiced if the appeal was to be reinstated. The prejudice being that the parties separated in 2007 and he has needed to deal with the ongoing stress and expense of litigation since, as I understand it, 2014. I accept that this amounts to an element of prejudice for the respondent but when all relevant matters are balanced together, it is my view, that the appeal should be reinstated.
Costs
There is an application for costs by the respondent against the applicant or in the alternative her solicitors. The costs sought are in the amount of $2,500 which I am satisfied is a proper sum. The circumstances which gave rise to the application for reinstatement, as I have already said, have nothing to do with the applicant and are solely the responsibility of the solicitors acting on her behalf. There is no proper basis for visiting on the applicant the costs consequences of her solicitor’s failure to properly attend to the matter. It follows there are no justifying circumstances by reason of which the Court would depart from the usual rule that the parties pay their own costs insofar as that consideration applies to the parties.
However, the default having been that of the solicitors and the proceedings necessitated solely as a result of that default, different considerations arise because that default amounts to justifying circumstances.
I do not accept the argument advanced by the solicitors that the respondent properly advised should have conceded the application. For that proposition to be made good, the respondent needed to be in possession of the entire facts. As has been established, the material upon which the solicitors relied, until this morning, was misleading and provided an explanation which by reference to the facts known to the respondent did not withstand scrutiny. A further explanation by the partner appearing with the relevant solicitor has shown that had the entirety of the facts been known and made available to the respondent before today, it may well have been that the respondent should have conceded the application. However, on the basis of the material known to the respondent until the commencement of the hearing this morning the same cannot be said.
The solicitors should pay the respondent’s costs of this application in the amount sought.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 December 2016.
Associate:
Date: 15 December 2016
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